University of Michigan Law School
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Articles
Faculty Scholarship
1984
Timing as Jurisdiction: Federal Civil Appeals in
Context
Edward H. Cooper
University of Michigan Law School, [email protected]
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Recommended Citation
Cooper, Edward H. "Timing as Jurisdiction: Federal Civil Appeals in Context." Law & Contemp. Probs. 47 (1984): 157-64.
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TIMING AS JURISDICTION: FEDERAL
CIVIL APPEALS IN CONTEXT
EDWARD H.
COOPER*
I
INTRODUCTION
The final judgment rule has defined the jurisdiction of the federal courts of
appeals from the beginning. A truly final judgment signals the finish of all the
proceedings intended to complete action by the trial court. Over the years, courts
and Congress have continually expanded the list of occasions for appeal before a
truly final judgment. The final judgment requirement has been supplemented by
a list of elaborations, expansions, evasions, and outright exceptions that is dazzling
in its complexity. Lawyers and judges who are expert in working with the system
are able to identify the doctrinal rules and lines of argument, but often encounter
elusive uncertainty in seeking clear answers to many problems. Those who are less
than expert are apt to go far astray. Surely the time has come to inquire whether
all this complexity can be simplified.
The purpose of these few pages is to show that the calculus of appeal timing is
inherently complex. If we are to continue the effort to capture the calculus in
rules, the rules will be correspondingly complex. The complex rules will have
some virtues; nonetheless, the rules also are likely to generate misunderstanding
and may tend to produce undesirable results. It is very tempting to replace the
rules with a flexible system that relies largely on discretion to determine the occasions for appeal before a truly final judgment. Whether a flexible system has now
become appropriate depends on the same institutional factors that make the
calculus so complex. The best answer may be to adopt the framework for discretionary interlocutory appeals without yet abolishing present rules. As the discretionary system becomes more familiar, it should prove possible to discard many of
the present rules in a gradual process of attrition.
The most direct components of the appeal timing calculus are so familiar as to
require no more than a brief reminder. If review of a trial court ruling is postponed until the final judgment, serious consequences may ensue. As to matters
that bear only on the conduct of the litigation, an error may so taint subsequent
proceedings as to require reversal and further proceedings. The further proceedings may not only represent an expensive duplication of effort, but may themselves
be distorted beyond repair by the events of the first trial. As to matters that have
effects beyond the court proceedings, irreparable injury may occur-confidential
information may be revealed, construction of a flood-control project delayed by an
Copyright © 1984 by Law and Contemporary Problems
* Professor of Law, University of Michigan.
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injunction, or the like. Immediate review of every trial court ruling, on the other
hand, would impose impossible costs of disruption, delay, and expense. Even short
of that extreme, frequent review may severely disrupt the trial process and impose
significant costs on the courts of appeals as it becomes necessary to repeat time and
again the task of becoming familiar with the case. The possible benefits of early
review, moreover, are reduced by the prospect that justice often is done in particular cases without appellate review. Trial judges are more likely to be right than
wrong, and the effects of many wrong rulings are dissipated by subsequent trial
court proceedings. Loss of the need for review, however, may carry a cost that goes
beyond the demands of the particular case, as appellate courts may be deprived of
the opportunity to clarify and improve the law on matters that repeatedly evade
review.
These competing concerns cannot be accommodated by a process of logical
reasoning from unshakable premises about the nature of the appellate process.
Instead, the structure of the relationships between trial courts and appellate courts
must be rested on the lessons of experience. At times the lessons are clear and
dramatic. For a few years, several courts of appeals were persuaded that appeal
should lie from an order denying a motion to disqualify opposing counsel. Appeals
proliferated, and with them suspicions that motions to disqualify had come to be
prompted in part by purposes of delay or even harassment. Experience proved the
appeal rule bad, and it was abandoned.
The most fundamental lessons of experience, however, are much less certain or
compelling. These lessons depend on the very structure of the system at both trial
and appellate court levels. They depend as well on the nature of the judges; many
aspects of non-appeals law, both substantive and adjective; and the character of
the bar. Because so many matters must be considered, there is ample room to
disagree over the optimal timing of appeals. More important, the detailed rules of
timing that are best today for the federal courts need not be best tomorrow for the
federal courts, nor for any other courts either today or tomorrow. A wise system of
timing depends on the full institutional context of a particular court system. The
most important aspects that must be considered are set out below. Ultimately, the
question must be whether these matters are so complex and so shifting that they
cannot be contained in any set of elaborate rules-whether our institutions have
matured to the point at which discretion can be substituted for some part of the
rules.
II
INSTITUTIONAL FACTORS
A.
The Role of the District Courts
Many of the institutional factors that must be weighed in shaping the timing of
appeals involve the trial courts. The nature and quality of the federal district
judges is the single most important factor to be counted. The better the judges are,
the less need there is for frequent interlocutory appeal-they will make fewer mistakes, and more often correct their own mistakes before serious harm is done. In
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building a general appeal structure, moreover, the nature of the trial judges may
affect the choice among alternatives in more subtle ways. Should trial judges
prove to be much like appellate judges in ability and temperament, it is possible to
rely on them to play a significant role in determining the need for interlocutory
appeals. In the best circumstances, we might trust trial judges to view appellate
judges as a resource to be invoked whenever immediate review promises to facilitate the speediest, most just, and most efficient disposition of litigation. To the
extent that we do not trust trial judges, on the other hand, we will be driven to rely
more on clear rules or on discretionary devices that are controlled by the courts of
appeals.
The performance and role of district judges relates to the timing of appeals in
another way as well. The authority, prestige, and self-confidence of trial judges
are enhanced as the occasions for appeal are reduced. If we begin with a good
corps of judges, the result of limiting the frequency of interlocutory review may be
to make them better, and to ease the task of attracting the best people to the
bench. In a happy cycle of mutual reinforcement, the result may be that we can
rely ever more on trial judges in determining the best occasions for interlocutory
appeals.
The performance of the district courts and the timing of appeals are further
affected by the extent of the authority conferred on district courts by the scope of
appellate review. Initially, the value of interlocutory appeals declines as the standard of review is restricted and the probability of reversal is diminished. It may
seem that this result is simply incidental, and that the scope of review should be
fixed by the comparative capacities of trial courts and appellate courts. Even on
this approach, good trial courts may be accorded broad authority and discretion.
Appellate courts, moreover, may conclude that their own limited resources are
better devoted to settling general issues than to policing specific applications of law
and procedure in specific cases. Whatever the reasons for deferring to the acts of
district courts, it is again possible that a decision to adopt relatively narrow standards of review may trigger a self-reinforcing process. As good trial courts are
entrusted with greater authority and discretion, their performance may improve
still further, and the prospects of reversal will diminish even beyond the initial
forecast based on the narrowed standard of review. In many ways, trial judges
may make correct decisions precisely because we have willed it so by our interdependent rules for the timing and scope of appeals.
The formal rules of trial court procedure also must be considered in adjusting
the timing of appeals to the institutional framework. Procedural rules of course
depend on each of the three factors noted above-the character of the trial judges,
the timing and frequency of appellate review, and the standards of review.
Beyond these factors, the rules may be drawn with more or less specificity
according to the confidence of the drafters in their own ability to give clear
answers and in the ability of the trial judges and the trial bar to administer flexible
rules with wisdom. The formal rules also should depend on the ability of appellate
courts to improve on trial court rulings, whether on immediate appeal or on
appeal after final judgment. The timing of appeals should depend in part on the
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nature of the formal rules, and in part on the question whether the formal rules are
in fact well adapted to the real workings of the court system.
At least one more aspect of the trial court system must be counted in framing
the appellate rules. The volume of litigation and the mix of different types of
litigation may prove important in many ways. Federal courts encounter an
increasing number of suits that involve difficult law and incredibly complex facts.
One complete proceeding in these suits is almost too much. Yet they often pose
multiple opportunities for error; if appeal is delayed to final judgment, there are
great risks that reversal will entail absurd costs of relitigation or that affirmance
will blink at serious error in order to avoid such absurd costs. Appeals rules that
work well for ordinary litigation must depend in part on the frequency with which
such suits occur. Special responses also may be appropriate because of a different
feature of complex litigation: trial court proceedings often can be diverted to other
matters while a particular issue is being appealed, with little or no loss to the
overall progress of the case.
Quite apart from the incidence of complex litigation, appeals timing may
depend on the overall caseload of the trial courts. Although it is not clear just
what adjustments are appropriate, it is important at least to think about the needs
of a system that may be burdened with more litigation than can be tried efficiently
and well. The adjustments that prove wise will depend on experience, as it will be
affected by the other factors that control appeal timing. If trial courts do well on
their own, it may be possible to reduce the occasions for interlocutory appeal in
order to avoid further delays in processing the general mass of litigation. If fully
completed trial proceedings frequently encounter reversal, it may prove necessary
to increase the occasions for interlocutory appeal. Increased interlocutory appeals
will repay the inherent costs, however, only if it is possible to identify the most
profitable occasions.
B.
The Role of the Courts of Appeals
The character, structure, and procedure of the courts of appeals bear on the
timing of appeals just as surely as those of the trial courts. Perhaps the most
obvious factor is simply the limited number of appellate courts and judges. As
appeal capacity becomes increasingly scarce, there are alternative strategies for
response. One is to expand the number of appellate courts and judges. This
strategy is subject to significant limits-it has proved difficult to administer a large
bench within a single circuit, and expansion of the number of circuits reduces the
opportunity for uniformity across sizeable regions. These limits might be altered if
some new means of achieving uniformity were found, as perhaps by creation of a
new court standing between the courts of appeals and the Supreme Court.
Another strategy is to adjust the timing of appeals so as to place a higher value on
scarce appellate time. Rules governing appeals thus cannot be set without making
wise judgments about the present and probable future capacities of appellate
courts.
The procedures of courts of appeals have been altered as yet another means of
rationing their capacities. Old traditions of disposition by full-scale briefing, argu-
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ment, and opinion are giving way to settlement conferences, expedited submission,
and disposition by order or informal opinion. As appellate procedures evolve, the
courts may become increasingly adept at sorting out cases that require or deserve
close attention. This process may make it possible to rely more and more on appellate discretion, even as to the timing of appeals. Open discretion can be substituted for efforts to use specific categories or elaborate doctrine to define the
occasions suited for interlocutory appeal.
Just as trust in the district courts may affect the rules for timing appeals, so
may trust in the courts of appeals. Appellate discretion can be relied upon more
heavily if the judges can be trusted to weigh their capacities against the need for
appeal not only rapidly, but well. The standard of review likewise is affected by
the comparative capacities of the appellate courts. Review of matters of fact and
trial procedure is particularly dependent on the ability of the appellate process
and appellate judges to improve on trial court decisions. Whether the matter is
seen as higher regard for trial courts or lower regard for appellate courts, a narrow
standard of review continues to affect timing by reducing the probable value of
interlocutory appeals.
Appellate procedures and capacities combine with the scope of review in at
least one more way. It may be very useful to provide a means of interlocutory
review that asks only whether an obvious and important mistake has been made.
Extraordinary writ practice now serves this function, perhaps imperfectly. This
function can be served more regularly and efficiently if appeals judges become
reconciled to a very limited initial screening, and recognize that the same issues
may need to be reviewed on the merits after final judgment.
C.
The Role of the Bar
The obvious need to focus on the institutional character of the court system
should not obscure the further need to consider the character of the litigating bar.
The timing of appeals may have to depend on rules that are clear, simple, and
rigid if it is not possible to rely on the learning, wisdom, and character of the
lawyers who take appeals. Complex or discretionary rules carry high costs at the
hands of an ignorant or supine bar-too many ill-timed appeals will be taken by
lawyers who. fear their own ignorance, simply do not know better, or submit to
unworthy. motives of delay or harassment. Complex rules can be tailored to special needs, however, if lawyers can be trained to understand them. Even more
important, discretionary systems can be expanded if lawyers can be made to learn
and share the policy judgments that inform the wise timing of appeals. With a
very wise and well accultured appellate bar, rules of discretion might satisfy all
needs for interlocutory review. The character of the bar, finally, is not entirely
independent of appellate practices. A surprising level of self-education and
restraint might be induced by imposing substantial sanctions for ill-founded interlocutory appeals. Such sanctions could easily include payment of opponents'
attorney fees without significantly diluting the values many find in the traditional
rule against-taxing fees as costs. Another sanction that might speak directly to a
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common motive for delay by appeal would allow full interest rates for any extension of the time of judgment and collection.
III
INTERACTION OF THE TIMING OF APPEALS WITH
SPECIFIC LEGAL ISSUES
These general institutional factors may seem to provide quite enough confusion, standing alone and in abstract statement. Unfortunately, they cannot be
considered alone. The value of interlocutory appeal varies according to the substantive and procedural issues decided by the trial court. It may be more important to achieve prompt correction of errors as to some matters of substance or
procedure than others, and errors may be more likely in some areas than others.
A.
Substantive Law
As to matters of substance, mistaken trial court rulings may have effects that go
far beyond the mere conduct of litigation. Among the most common examples are
preliminary injunctions, discovery rulings that force release of confidential information, and adjustment of the relations between judicial proceedings and arbitration. Even if the mistake affects only the conduct of the litigation, it is not possible
to accept uncritically the conclusion that the burden of wasted trial proceedings is
always an appropriate price to pay for strict adherence to the final judgment rule.
Some substantive principles may override the general calculation. Absolute
immunity doctrines, for example, may be designed to protect against the burden of
litigation as well as the risk of liability; if so, appeal should be available from
denial of motions to dismiss or for summary judgment.
The substantive impact of possible error may seem so clear as to warrant a
routine right of interlocutory appeal in some circumstances. The right to appeal
the grant or denial of preliminary injunctions is the clearest example provided by
present practice. Other substantive values may require careful reflection on the
lessons of experience in shaping appellate jurisdiction. Whether it is desirable to
review a refusal to stay court proceedings pending arbitration, for example,
depends in part on the perceived values of arbitration. Special appellate protection may be required to the extent that arbitration, because it can be quicker,
cheaper, and better attuned to real-world needs than court-administered law, is
perceived as a valuable alternative to court proceedings.
Substantive law deserves consideration in ways that go beyond the intrinsic
importance of possible errors. Trial judges may be unusually prone to err in some
areas. Refusals to stay proceedings pending arbitration, for example, might often
result from distrust of arbitration and parochial confidence in the court's own procedures. Other areas may offer special opportunities for appellate development of
new or complex law. For example, in their early formative years broad new
schemes of regulatory or social legislation may warrant a pattern of relationships
between trial and appellate courts that is quite different from the relationships
that are appropriate in more familiar areas of law.
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B.
TIMING AS JURISDICTION
Procedural Law
Procedural rulings require the same distinctions as substantive rulings. Some
matters of procedure involve more serious consequences or greater probability of
error than others. Important procedural innovations may warrant special patterns
of review during the early years. All of these concerns are shown in the intense
pressures that have shaped appeals with respect to class action rulings. Grant or
denial of class certification may have incalculable consequences for the conduct of
a suit. Attitudes toward class actions have covered the spectrum from open hostility to warm embrace, and identifiable doctrinal issues have generated frequent
disagreements. It could be particularly beneficial to develop a pattern of relatively
permissive interlocutory appeal while class action procedure is growing and
changing, and to shift away as it evolves toward maturity.
IV
CONCLUSIONS AND RECOMMENDATIONS
All of these concerns of institutional structure, lawyerly competence, substance,
and procedure may seem confusing and often contradictory. Perversely, they must
be brought to a conclusion that accommodates remaining institutional needs. It is
important that the rules for timing appeals be clear and well understood. It is also
important to avoid foolish forfeitures. Once a case has been submitted to an
appellate court, the court should not refuse to decide simply on the ground that
some mistake of timing has deprived it of "jurisdiction." Decision may be refused,
but only if that course protects a proper relationship between courts for the particular case. To the extent that special protective opportunities are afforded for interlocutory appeals, failure to seize the opportunity should not by itself defeat the
right to later review.
The best means for combining all of these needs remain uncertain. The final
judgment rule remains the point of departure for federal courts, but many
extended flights have taken off from this point. Absolute rights to interlocutory
review have been recognized by statute in some areas. Elaborations of the final
judgment rule have generated rights of interlocutory review that are nearly absolute in some areas, and are subject to broad appellate discretion in others. Trial
court discretion has been invoked through procedures for achieving finality as to
portions of multiclaim or multiparty litigation, and through procedures for interlocutory appeal by certification. Appellate court discretion has been invoked
through the procedure for interlocutory appeal by certification, and through
extraordinary writ practice. This process has achieved substantial flexibility to
respond to special needs, and has retained clear rules for most of the matters that
are involved in most litigation. On the other hand, it may waste too much time in
preliminary arguments on jurisdiction, generate ill-founded appeals that rest on
uncertainty or ignorance, and formulate opportunities for appeal that outlast any
useful life. If by luck or design federal courts have hit upon the best possible rules
for today, they must remain alert to change them as time marches on. And state
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courts can scarcely hope to benefit from the specific rules, which must depend on
the peculiar problems of the federal courts.
Inevitably, the time will come for a far simpler structure. Many adjective doctrines have been transformed successfully from rule to discretion. The special rules
and complicating doctrines that now litter the landscape of appellate jurisdiction
will be discarded when our institutions are ready for a more openly discretionary
system of interlocutory appeal. The most likely shape of the reform is relatively
simple. The present procedures for interlocutory appeal by certification of the
district court and application to the court of appeals can be simplified and combined with extraordinary writ practice. The occasionally stultifying limits on current certification standards will be removed. Application for certification by the
district court should be required, absent a strong showing of reasons for immediate
application to the court of appeals. Once the district court has granted or denied
certification, application can be made to the court of appeals. The decision by the
court of appeals whether to permit an extraordinary interlocutory appeal would
depend entirely on its discretion. During a transitional period, it might prove
desirable to retain some provisions for interlocutory appeal as a matter of right;
preliminary injunction rulings provide the most attractive example. Eventually,
however, it might be possible to discard even these provisions and to rely on discretionary doctrines as the sole supplement to appeal of genuinely final judgments.
A much simpler structure of this sort, depending on discretion, could accommodate admirably the shifting needs of substance, procedure, and institutional
capacities. As attractive as the structure may seem, however, it must be
remembered that it depends on elusive institutional judgments. If lawyers cannot
be educated in the calculus of interlocutory appeal and disciplined to honor it, the
simple system could break down. So too, much will depend on wise administration by the courts of appeals. They must perfect the ability to react quickly and
well to a large number of applications for appeal. Perhaps the safest course is also
the simplest. The framework for discretionary appeals can be created without
directly undoing the elaborate doctrines we now have. If the discretionary system
proves successful, the alternative intricacies of current doctrine should wither
away.
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